SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0560-16T3

ERIC D. AUSTIN and MARIA

AUSTIN,

Plaintiffs-Respondents,

v.

MORRIS PLAINS 

CONTRACTING, LLC, M&M 

AT MORRIS PLAINS, LLC, and

PYRAMID CONTRACTING

CORPORATION,

Defendants,

and

FRENCH & PARRELLO 

ASSOCIATES, PA,

Defendant-Appellant.

____________________________

Argued September 20, 2018 – Decided July 23, 2019

Before Judges Alvarez, Nugent and Reisner.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-6099-13.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Jerald F. Oleske argued the cause for appellants (Oleske 

& Oleske, LLP, attorneys; Jerald F. Oleske and Robert 

M. Brigantic, on the briefs).

James S. Lynch argued the cause for respondents 

(Lynch, Lynch, Held & Rosenberg, PC, attorneys; 

James S. Lynch and John Randy Sawyer, of counsel and

on the brief). 

PER CURIAM

Plaintiff Eric D. Austin suffered catastrophic injuries when he fell while 

working at an industrial site. A jury found defendant French & Parrello 

Associates, PA (FPA or defendant) 73 percent liable for the accident, resulting 

in a judgment for approximately $5.8 million in damages to plaintiff1and about 

$380,000 to his wife Maria Austin on her per quod claim. Defendant appeals 

from the May 26, 2016 judgment, and from an August 25, 2016 order denying 

its motion for a new trial or for judgment notwithstanding the verdict.

On this appeal, defendant presents the following points of argument2for 

our consideration: 

 

1 Since the appeal focuses on Eric Austin's personal injury claim, we refer to 

him as "plaintiff." 

2 Contrary to Rule 2:6-2(a)(1), defendant's point headings fail to note arguments 

not presented to the trial court. In addition, defendant's procedural history and 

statement of facts are rife with legal argument. We only consider legal 

arguments set forth in point headings in the legal argument section of the brief. 
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POINT I 

THE VERDICT IN THIS CASE WAS NOT 

SUPPORTED BY CREDIBLE EVIDENCE AND 

RESULTED FROM MISTAKE, PARTIALITY, 

PREJUDICE AND PASSSION. 

POINT II 

PLAINTIFF'S EXPERT, STEPHEN ESTRIN, 

SHOULD NOT HAVE BEEN PERMITTED TO 

OFFER ANY OPINIONS REGARDING THE 

ALLEGED FAILURE TO DRAFT A FALL 

PROTECTION PLAN AND/OR A PREDEMOLITION ENGINEERING SURVEY.

POINT III 

THE TRIAL JUDGE ERRED IN FAILING TO 

CHARGE THE JURY THAT IT COULD CONSIDER 

THE NEGLIGENCE OF PLAINTIFF'S EMPLOYER 

DANCO IN THE CONTEXT OF THE DEFENSE'S 

POSITION THAT THE ALLEGED CONDUCT OF 

MR. FISHER OF DANCO IN REQUIRING THE 

PLAINTIFF TO HARVEST COPPER OUTSIDE OF 

THE SAFETY OF THE CATWALK WAS THE SOLE 

AND PROXIMATE CAUSE OF THE ACCIDENT. 

POINT IV 

THE COURT IMPROPERLY CHARGED THE JURY 

THAT PLAINTIFF'S RECEIPT OF WORKERS' 

COMPENSATION BENEFITS WERE NOT 

ADEQUATE TO COMPENSATE THE PLAINTIFF 

FOR HIS INJURIES.

 

See Mid-Atlantic Solar Energy Indus. Ass'n v. Christie, 418 N.J. Super. 499, 

508 (App. Div. 2011). 
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POINT V

THE COURT ERRED IN FAILING TO GIVE A 

CURATIVE INSTRUCTION TO THE JURY DURING 

THE SUMMATION OF PLAINTIFF'S COUNSEL 

CONCERNING PLAINTIFF'S COUNSEL'S 

ASSERTION THAT FPA CHOSE NOT TO "BRING 

TANIS GIVENSKY INTO COURT."

POINT VI 

THE MINIMAL ASSESSMENT OF COMPARATIVE 

NEGLIGENCE AGAINST THE PLAINTIFF 

DEMONSTRATES THAT THE JURY 

OVERLOOKED OR IGNORED CRITICAL 

EVIDENCE IN THIS CASE.

POINT VII

SINCE IT WAS CLEAR FROM THE TESTIMONY 

OF MR. ESTRIN HIMSELF THAT THE WORK 

PLAN PUT IN PLACE BY DANCO FOR THE 

REMOVAL OF PRECIOUS METALS PRIOR TO 

MECHANICAL DEMOLITION WAS "AN 

EXCELLENT" FALL PROTECTION PLAN, FPA 

COULD NOT BE FOUND NEGLIGENT. 

POINT VIII

THE COURT ERRED IN CHARGING THE JURY 

THAT A MAN WHO MUST WORK TO LIVE IS NOT 

NECESSARILY NEGLIGENT WHENEVER HE 

CONTINUES TO WORK AFTER LEARNING OF A 

HAZARD. 

Preliminarily, we note that in a March 31, 2017 letter to the Clerk's Office, 

defense counsel confirmed that "since the quantum of damages has not been 

appealed, French & Parrello need not include in its revised appendix plaintiff's 

medical records." Because defendant waived objection to the amount of the 
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verdict and accordingly did not provide relevant portions of the trial record, we 

decline to consider defendant's Point IV, concerning a jury charge that workers' 

compensation benefits would not make plaintiff whole. See Joy v. Barget, 215 

N.J. Super. 268, 272 (App. Div. 1987). The point is solely relevant to the 

damage award.

We affirm the denial of the motions for a new trial and judgment 

notwithstanding the verdict substantially for the reasons stated by Judge Vincent 

LeBlon in his August 25, 2016 oral opinion. None of defendant's remaining 

arguments warrant disturbing the verdict, and except as addressed below, they 

are without sufficient merit to require discussion in a written opinion. R. 2:11-

3(e)(1)(E). 

Plaintiff and his son Jared were working on a demolition project involving 

several large industrial buildings. Their employer, Danco General Contracting 

(Danco), was in the business of demolishing industrial structures, in exchange 

for permission to "harvest" and resell valuable components of the buildings such 

as copper piping. On the day of the accident, plaintiff and his son were assigned 

to cut down and recover copper piping that was located near the ceiling of a 

large room that was criss-crossed by catwalks or elevated platforms. Plaintiff, 
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who was not wearing a harness or other fall protection equipment, fell from a 

catwalk and suffered severe injuries, including traumatic brain damage. 

Danco had contracted with defendant FPA for the latter to provide and 

oversee a safety plan for the job. A central issue in the case was whether FPA's 

responsibility for planning and overseeing safety on the job site included fall 

protection. Based on our review of the record, we conclude there was a material 

factual dispute about that issue, which the trial judge properly let the jury 

resolve.3

At trial, as on this appeal, FPA contended that its responsibility was 

limited to protecting the workers from environmental hazards, such as toxic 

chemicals. However, there was sufficient trial evidence – including testimony 

from Christopher Williams, one of FPA's on-site employees, and Daniel 

Matarese, Danco's owner – from which reasonable jurors could conclude that 

FPA undertook broader job safety responsibility, including fall protection.4

 

3

In fact, during oral argument of a mid-trial motion, defendant's counsel 

conceded that "there's a dispute in the evidence as to what my client was hired 

to do." 

4

In his deposition testimony, Matarese made several statements that were quite 

damaging to defendant. In questioning Matarese at trial, defense counsel made 

a zealous effort to rehabilitate that testimony. However, the jury could have

chosen to believe the answers Matarese gave to plaintiff's counsel at the 

deposition. 
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Moreover, the "Site-Specific Health and Safety Plan," which FPA prepared for 

this job, specifically listed "General Demolition" hazards as well as 

"Environmental" hazards. The general demolition hazards included "Slip, Trip,

[and] Fall." 

In addition, at his deposition, Ed Hamilton, the FPA employee who 

negotiated the contract with Danco, undermined FPA's defense based on an 

exclusion in the contract with Danco. The clause stated that FPA was not 

responsible for "construction" safety and practices. Hamilton testified that the 

clause did not apply to this job, because it involved demolition and not 

construction. 

As previously noted, plaintiff fell from an elevated catwalk while carrying 

out an assignment to harvest copper piping. Plaintiff's son Jared, who was 

working with his father at the time of the accident, testified that it was necessary 

to climb over the railings of the catwalks and walk out on unprotected ductwork 

in order to reach the copper piping. Photographic evidence corroborated his 

testimony. The photographs showed the location of the copper piping and a 

series of boot prints on the railings of the catwalks. From the boot prints near 

the site of plaintiff's fall, a jury could reasonably infer that plaintiff fell while 

standing on the railing of the catwalk. 
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Jared also testified that there were an insufficient number of harnesses and 

lanyards at the job site. He testified that, several days before the accident, he 

asked a supervisor for a harness to use and was told that there were only enough 

harnesses for the workers assigned to the scissor lifts. Since Jared was working 

on a high ladder that day instead of a scissor lift, he was not given a harness. In 

his testimony, Matarese admitted there were not enough harnesses available for 

all of the workers on the job site.

Plaintiff presented a demolition safety expert, Stephen Estrin, who 

testified in great detail about the deficiencies in defendant's performance of its 

duties, including the failure to create a fall protection plan and properly 

supervise its implementation. Defendant's argument that Estrin was unqualified 

to testify as an expert is based on its contention that defendant was solely hired 

to perform environmental safety engineering. However, Estrin did not testify 

about environmental safety issues, and there was sufficient evidence to support 

the factual assumptions that formed the basis for his demolition safety-related 

opinions.5 

 

5 While an affidavit of merit was not required in this situation, we also agree 

with plaintiff that defendant waived the issue by waiting until the start of the 

trial to raise it. See Murphy v. New Rd. Const., 378 N.J. Super. 238, 242-43 

(App. Div. 2005); Knorr v. Smeal, 178 N.J. 169, 180-81 (2003). 
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In short, both sides were represented by experienced attorneys who 

zealously represented their clients, and both sides received an eminently fair 

trial. Contrary to defendant's arguments, there was no basis for a directed 

verdict at the close of plaintiff's evidence, the liability verdict was not against 

the weight of the evidence, and the verdict was not a miscarriage of justice. See

R. 4:37-2(b); R. 4:49-1(a); Dolson v. Anastasia, 55 N.J. 2, 5-7 (1969); Dolan v. 

Sea Transfer Corp., 398 N.J. Super. 313, 329-30 (App. Div. 2008). Defendant's 

evidentiary issues either were not raised at trial and do not constitute plain error, 

or are patently insubstantial and do not warrant disturbing the verdict. R. 2:10-

2; R. 2:11-3(e)(1)(E). 

Defendant's claim that plaintiff's counsel attempted to inflame the jury is

not supported by the record. For example, during plaintiff's brief, rambling trial 

testimony, he mentioned a traumatic experience from his wife's childhood. It 

would have been clear to the jury that plaintiff, who had suffered brain damage, 

was giving a stream-of-consciousness, unresponsive answer to a question from 

his attorney. Plaintiff's counsel did not elicit this testimony, and defense counsel 

did not object to it. Contrary to another of defendant's arguments, it was not

improper for plaintiff's counsel to elicit testimony from Jared that Christopher 

Williams's workplace nickname was "Kris Kringle." It was obvious from the 
10 A-0560-16T3

testimony that the nickname, to which defense counsel also referred, was benign 

and not pejorative. Neither that reference nor any of the other testimony 

defendant now cites as improper had a clear capacity to produce an unjust result. 

See R. 2:10-2. 

Defendant's belated objections to the jury charge are likewise without 

merit. At the charge conference, defense counsel waived his objection to the 

instruction that the jury could not consider the employer's negligence as an issue 

in the case, stating that, "if I can argue that the sole proximate cause of this 

accident is the actions of Mr. Fisher [the Danco supervisor] then I'm fine." 

Defense counsel also waived objection to the "work to live" charge, noting that 

he would "deal with it." Defense counsel's summation took full tactical 

advantage of the expected jury charges to which he had agreed.

6

 Neither charge 

was error, much less plain error. R. 1:7-2; R. 2:10-2. 

Defendant's argument concerning the relatively small amount of 

negligence the jury attributed to plaintiff is likewise unpersuasive. As an 

 

6 After both sides had given their summations, which took into account their 

agreement at the charge conference, defense counsel asked Judge LeBlon to 

reconsider the employer negligence issue, charge the jury as to Danco's 

negligence, and change the verdict sheet. Judge LeBlon denied the requests, 

noting that they were asserted untimely and granting them would cause plaintiff 

"undue prejudice." We affirm that ruling for the reasons the judge stated. 
11 A-0560-16T3

understandable litigation tactic, defense counsel's closing argument avoided 

blaming the badly-injured plaintiff for the accident and instead focused blame 

on one of the settling defendants, Morris Plains Contracting. In his closing, 

plaintiff's counsel reminded the jury that even defendant's safety expert

attributed only "a little bit" of fault to plaintiff. Absent plain error, of which we 

find none, defendant is not entitled to relief from the consequences of its chosen 

trial strategies. See T.L. v. Goldberg, __ N.J. __, __ (2019) (slip op. at 18-19). 

Affirmed.